Summary of the new offence
The new offence details of which is set out in section 34 of the Bill, criminalises the possession of obscene, pornographic images which explicitly and realistically depict:
- an act which takes or threatens a person's life
- an act which results or is likely to result in a person's severe injury
- rape or other non-consensual penetrative sexual activity
- Sexual activity involving (directly or indirectly) a human corpse
- An act which involves sexual activity between a person and an animal (or the carcase of an animal)
The maximum penalty for the new offence will be three years imprisonment.
The new offence is similar to that at section 63 of the Criminal Justice and Immigration Act 2008, which applies in England, Wales and Northern Ireland. The Scottish offence goes further than that offence, however, in that it covers all images of rape and non-consensual penetrative sexual activity, whereas the English offence only covers violent rape.
The offence will not catch those who accidently come into contact with this type of material and the provisions will contain a defence to this effect. There will also be a defence for those who can prove that they participated in the act depicted, that the extreme nature of the act was apparent and not real and there is no intention to distribute the material.
Under section 51 of the Civic Government (Scotland) Act 1982, it is already illegal to publish, sell or distribute or to possess with a view to selling or distributing the obscene material, including the obscene pornographic material which is covered by this new offence. The Bill therefore contains provisions to increase the maximum penalty under section 51 of the 1982 Act in respect of extreme pornographic material from three to five years.
The Scottish Government proposes to increase the maximum penalty under section 51 of the 1982 Act in respect of the publishing etc. of extreme pornographic material from three to five years.
Background
In August 2005 the Scottish Government (the then Scottish Executive) and the Home Office consulted jointly on proposals to create an offence of possession of extreme pornographic material.
This consultation is now closed. Ninety three responses were received and analysed. A copy of the Consultation Paper, an analysis on consultation responses and the 68 responses from respondents who agreed to their views being shared are available here.
Copies of the responses can also be obtained from the Scottish Government Library.
The Scottish Government announced in September 2008 that legislation would be brought before Parliament to ban the possession of extreme pornography.
Revitalising Justice - Proposals to Modernise and Improve the Criminal Justice System set out broad details of the proposed legislation to introduce a new offence for the possession of extreme pornographic material.